Nicoletti v. Curry

2013 BCSC 2469 Nicoletti v. Curry

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Nicoletti v. Curry, 2013 BCSC 2469 Date: 20130313 Docket: 09-4634 Registry: Victoria Between: Connie Karin Francis Nicoletti Plaintiff And: Andrew Thomas Curry Defendant Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgment Counsel for the Plaintiff: M. Selly Counsel for the Defendant: M.J.C. Smith Place and Date of Trial/Hearing: Victoria, B.C. March 11, 2013 Place and Date of Judgment: Victoria, B.C. March 13, 2013 [1] THE COURT: On 29 October 2007, the motor vehicle being driven by the plaintiff, Ms. Nicoletti, collided with the motor vehicle being driven by the defendant, Mr. Curry. [2] On 15 October 2009, Ms. Nicoletti launched a lawsuit against Mr. Curry, claiming that he was at fault for the accident. Ms. Nicoletti's suit came on for trial before me on 15 October 2012. By agreement of the parties, the only issue at that time for determination was the question of liability. The issue of damages was left for another day. [3] On 26 October 2012, I dismissed Ms. Nicoletti's action because I found she was responsible for the motor vehicle accident in question. I had concerns about the strength and accuracy of Ms. Nicoletti's evidence and in particular I found her reliability as a witness was seriously weakened by the contradictions that existed between her testimony at trial, her prior written statement to

an adjuster from the Insurance Corporation of British Columbia ("ICBC"), and the answers she provided when she was examined for discovery. As I noted in my reasons for judgment, Ms. Nicoletti indicated in her statement to ICBC, that immediately after the crash a B.C. Transit bus proceeding southbound on Gordon Head Road approached the accident scene. At her examination for discovery, Ms. Nicoletti had been certain that the bus was at the bus stop when the accident occurred, and I will repeat a portion of her questions and answers: Q Ma'am, is it not true that in fact the bus showed up at the accident site after the accident occurred? A No. Q You're certain of that? A Yes. [4] Ms. Nicoletti confirmed in her evidence at trial that she had assisted with the creation of a diagram of the intersection where the accident occurred. This diagram purportedly depicted Ms. Nicoletti's version of events and it included a transit bus being parked at the bus stop at the time of the accident. Ms. Nicoletti explained the diagram was based upon the information she had at the time and her belief that a bus was at that location when the accident happened. [5] The driver of the B.C. Transit bus, Mr. Stark, provided a video deposition approximately two weeks prior to the trial date. In that deposition, he indicated that he did not see the accident and arrived at the scene after it had occurred.

Clearly his evidence was not corroborative of Ms. Nicoletti's assertion that the bus was stationed at the bus stop when the accident occurred. This evidentiary development may well explain why in her evidence at trial Ms. Nicoletti changed her version of events and testified that when her car came to a rest after the collision, she did not see a bus at the bus stop. [6] I found all of the witnesses who testified at trial did so in a genuine manner. However, on the key facts about the accident and how it occurred, I found myself doubting the reliability of Ms. Nicoletti's evidence and unable to accept her version of events. That is, I was not persuaded that the accident occurred as described by Ms. Nicoletti. In my view, counsel for Mr. Curry was correct in asserting that Ms. Nicoletti had quite likely recreated the events and had done so in a way to fit her theory that Mr. Curry had changed lanes in the intersection to get around a bus that was stopped in the southbound lane of Gordon Head Road. The following excerpt from Ms. Nicoletti's examination for discovery illustrates the point: Q Is there anything in your mind that explains why this blue car changed lanes? A Yes. Q What is that? A A bus stopped at the bus stop in front of him. [7] On the evidence before me at trial, I was satisfied on a balance of probabilities the traffic control light was flashing green or at the very

least solid green when the collision occurred, and that it was Ms. Nicoletti who had turned into the path of Mr. Curry's vehicle. [8] The question now before the court relates to the issue of costs and more particularly the defendant's application that I award him double costs based upon an offer to settle that was delivered to the plaintiff prior to the trial. Law [9] The court has a broad discretion when it comes to the awarding of costs and in particular the awarding of double costs: Gregory v. Insurance Corporation of British Columbia, 2010 BCSC 1369. [10] The starting point of any consideration of costs is Rule 14-1(9) of the Rules of Court. The rule provides that in general, costs of a proceeding must be awarded to the successful party. There can be no dispute that in the present case, the defendant was the successful party. [11] The next rule that is relevant to the issue before me is Rule 15‑1. That rule applies to cases, like the present one, that has been litigated on a fast track basis. Rule 15-1(15) provides that a successful party in a fast track action is entitled to costs on the following scale: (a) if the time spent on the hearing of the trial is one day or less, $8,000; (b) if the time spent on the hearing of the trial is two days or less but more than one day, $9,500; (c) if the time spent on the hearing of the trial is more than two days, $11,000. [12]

Finally, Rule 9-1 governs the issue of offers to settle, and in particular Rule 9‑1(5)(b) provides: In a proceeding in which an offer to settle has been made, the court may do one or more of the following: . . . (b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle; [13] As Willcock J. observed in Khunkhun v. Titus, 2011 BCSC 1677, at para. 17: The cost provisions of the rules of court are intended to serve a compensatory purpose, to permit successful litigants to cover their costs. They are also intended to further the objectives summarized in Sartori v. Gates [citation omitted] as follows: (a) deterring frivolous actions or defences; (b) encouraging conduct that reduces the duration and expense of litigation and discouraging conduct that has the opposite effect; (c) encouraging litigants to settle wherever possible, thus freeing up judicial resources for other cases; and (d) winnowing litigation, by requiring litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation and by discouraging the continuance of doubtful cases or defences. [14] I have also taken note of the comments in Bailey v. Jang, 2008 BCSC 1372 wherein Hinkson J., as he then was, observed that the rules concerning double costs are designed

to encourage settlement by, among other things, penalizing the party who declines to accept an offer to settle. Issues [15] In my view, there are two issues to determine. The first is whether the trial of this matter encompassed two or three days of trial time. That will impact upon the scale of costs to be awarded. The second issue is whether the defendant is entitled to double costs and if so, from what point in time. Length of the Trial [16] The first day of trial was on 15 October 2012. It lasted the entire day. The evidentiary portion of the trial concluded before the morning break the next day (16 October 2012). [17] Prior to the morning adjournment on 16 October 2012, I advised counsel that the court was short of judges that day and that I was needed to preside over other matters in the afternoon. Although I indicated to counsel that this case took priority and would continue in the afternoon with submissions if counsel wished, I also enquired if they were prepared to have the submissions adjourned to the next day. Both counsel expressed their preparedness to proceed in the afternoon. However, respectful of the court's need to attend to other matters and wishing to take advantage of the extra time to prepare their submissions, both counsel agreed to adjourn the matter to 10:00 a.m. the next morning (17 October 2012). In the result, day 2 of trial only consisted of a

half-day. [18] On 17 October 2012, the matter did not resume at 10:00 a.m. as planned, because other matters were before the court at that time. That was not the fault of either party or their respective counsel. Counsel for the plaintiff commenced his submissions at approximately 10:45 a.m., and concluded them shortly before the morning adjournment. Counsel for the defendant began his submissions a few minutes before the morning adjournment. He resumed his submissions at approximately 3:30 p.m. and not earlier, again because the court had other matters on its afternoon list. Counsel for the defendant concluded his submissions at approximately 4:30 p.m. Submissions, therefore, took approximately two and three‑quarter hours. [19] In total, over the course of three days, the trial of this matter took approximately nine hours to complete. In my view, nine hours equates to approximately two court days. Moreover, I am convinced that but for the court's enquiry of counsel whether they were prepared to go over to a third day to accommodate the court's needs, this matter would have concluded in two days. I do not mean to attribute fault or direct any criticism to counsel for the fact that this matter went to a third calendar day. That was done principally at the request of the court. [20] In my view, neither side should be held responsible or penalized because this matter technically

ran into a third day. Having considered the amount of court time this case actually consumed, I am of the opinion that for the purposes of Rule 15‑1(15), this matter took two days or less to complete. Double Costs [21] On 9 February 2010, an offer to settle this action for $1,000 and reasonable disbursements was served on the plaintiff. Ms. Nicoletti did not accept the offer and the matter went to trial. As I have already noted, I found Ms. Nicoletti was at fault and responsible for the accident. Consequently her action was dismissed in its entirety. [22] The factors the court must consider when deciding whether to award double costs are set out in Rule 9‑1(6): (a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date; (b) the relationship between the terms of settlement offered and the final judgment of the court; (c) the relative financial circumstances of the parties; (d) any other factor the court considers appropriate. Was the offer to settle one that Ms. Nicoletti ought to have accepted? [23] In addressing this factor, I must do so without the benefit of hindsight. That is, I must consider the question without taking into consideration the end result at trial. Counsel for the defendant says Ms. Nicoletti's claim was weak from the outset, and therefore she

should have accepted the offer to settle upon its receipt or shortly thereafter. In making this submission, counsel points to the fact that Ms. Nicoletti had Mr. Curry's statement and that of Ms. Groot, an independent witness whose evidence corroborated much of the defendant's version of events. [24] Both parties recognize and accept that if the award of double costs is made on this basis, that a 10 percent discount should be applied to reflect the steps in the litigation that were taken before the offer was delivered. [25] In the alternative, counsel for the defendant argues that Ms. Nicoletti should have accepted the offer to settle shortly after the completion of the examinations for discovery. At that point, Ms. Nicoletti knew or ought to have known that Mr. Curry's evidence was consistent with what he had said in his statement to ICBC. Moreover, she must also have been aware that her answers at her examination for discovery clashed with what she had said in her statement to ICBC. Counsel for the defendant says a 15 percent discount to the award of double costs would be appropriate to reflect the litigation steps taken prior to this point in the case. Counsel for Ms. Nicoletti submits that if this scenario is accepted, then the discount should be 25 percent. [26] Finally, as a third alternative, counsel for the defendant argues that Ms. Nicoletti should have accepted the

offer to settle after the deposition of her witness, Mr. Stark. He was the operator of the transit bus that arrived at the scene shortly after the accident. Initially Ms. Nicoletti had asserted that the bus was present prior to the accident and that it was the reason why Mr. Curry had to change lanes. Mr. Stark confirmed on his deposition that he arrived after the accident. In her statement to ICBC and her answers on discovery, Ms. Nicoletti insisted that the bus was present. After learning the bus was not present, Ms. Nicoletti had to change her story. Instead of insisting that the stationary bus was the cause of Mr. Curry's lane change, Ms. Nicoletti asserted that Mr. Curry must have changed lanes because, had the accident occurred as he said it had, then his vehicle would have been blocking the path of Mr. Stark's bus that was behind him. According to Mr. Stark, there was no car in his path when his bus traversed the intersection. Mr. Stark could only recall Ms. Nicoletti's car being present in the intersection when he arrived and he could not recall seeing a second car in the vicinity. He also explained that to the best of his recollection his lane of travel was unimpeded by anything; that is, he could not remember a car being in his way. In my view Mr. Curry's car was present in the south bound curb land when Mr. Stark's bus approached the intersection and that Mr. Stark

was mistaken or did not notice it when he passed it. [27] Counsel for the defendant submits that a 25 percent deduction would be fair if the court finds the offer to settle should have been accepted at this point. Counsel for the Ms. Nicoletti says the discount should be 40 percent. [28] In my opinion, it should have been clear to Ms. Nicoletti after the deposition of Mr. Stark, that his evidence not only failed to corroborate her version of events but contradicted an important facet of it. [29] Counsel for Ms. Nicoletti argues it was not unreasonable for Ms. Nicoletti to have rejected the offer to settle at the outset. She recognized that her claim had an element of risk to it; however, she believed it was not frivolous. She had incurred medical expenses allegedly attributable to the accident and sought a legitimate redress through the court. Counsel argues that Ms. Nicoletti could not have foreseen the court's decisions on evidentiary matters, and more particularly could not have foreseen that her evidence would have been rejected. [30] I have kept in mind the factors articulated by Willcock J. in Khunkhun, and while I am prepared to give Ms. Nicoletti the benefit of the doubt and find it was not unreasonable for her to reject the offer at the outset, I find the situation did change over time, and that at the point in time where she became aware of Mr. Stark's evidence, she

should have accepted the offer. The Relationship Between the Award and the Offer [31] The defendant's offer was a very modest one of only $1,000. However, it also includes disbursements, and as the jurisprudence points out that is not a factor to be disregarded. In the end, the plaintiff has received nothing. Counsel for Ms. Nicoletti, has quite properly conceded that this fact weighs in favour of the defendant. Relative Financial Circumstances of the Parties [32] The defendant is represented by his insurer and it would be artificial of me to ignore this fact. That means I am not to view the defendant's situation based solely on his very modest financial means. [33] Ms. Nicoletti is a professional engineer who earns an income of approximately $90,000. She has a young child and, although the evidence is scant, it appears that she is the child's primary custodial parent. I know nothing about any child support Ms. Nicoletti receives from the child's natural father. I am told that Ms. Nicoletti is involved in a relationship and that her partner earns a not insignificant income. From all of this, I conclude that Ms. Nicoletti has the financial means to pay the costs associated with this case and, more importantly, that an award of double costs against her would not place her in financial peril or do an injustice to her. Other Considerations [34] Under this heading I have considered

the fact that Ms. Nicoletti is a professional engineer with experience in motor vehicle and traffic issues. I agree with counsel for the defendant's submission that Ms. Nicoletti's professional background provided her with a knowledge and appreciation of the duties of drivers and the rules of the road. In my view, this put her in a particularly strong position of being able to assess the risks of her case. [35] Counsel for Ms. Nicoletti argues that she pursued the most economical means of prosecuting what she believed was a meritorious claim. She chose to litigate the issue of liability first, instead of having all of her claim tried at once. She also chose to fast track litigation. Counsel says that Ms. Nicoletti's claim was fraught with risk, but it was not a frivolous claim. I accept that at the outset Ms. Nicoletti's claim may not have been frivolous. However, as time progressed and the various steps in this litigation were completed, the strength of Ms. Nicoletti's case diminished significantly. In my view, it should have been clear to Ms. Nicoletti that by the time Mr. Stark's evidence was in her possession, that not only was her claim fraught with risk, but that the evidentiary foundation of the claim was no longer as she thought it was. In my view, at that point it was unreasonable to continue. [36] In my opinion, Ms. Nicoletti should have accepted the offer to settle

shortly after the deposition of Mr. Stark. [37] Consequently, I will grant the application and award the defendant double costs. In exercising my discretion, I will deduct 25 percent from the amount awarded to reflect the timing when the offer should have been accepted. Order [38] Subject to any mathematical corrections that counsel wish to bring to my attention, the order resulting from these reasons will consist of the following: a) The defendant's application for double costs is granted; b) The award of double costs will be for a two‑day trial, and therefore those costs are $19,000; c) There will be a 25 percent deduction; given the finding of when the offer should have been accepted, that equates to $4,750; d) The costs award is therefore $14,250. [39] Each party will bear their own costs of this application. [40] THE COURT: Anything further? [41] MR. SMITH: No, and just to be -- other than that $14,250 is, to clarify, My Lord, the pre‑tax amount and then pre‑disbursements, so $14,250 plus the taxes on fees, plus the disbursements will be the order that goes. [42] THE COURT: Yes, the ordinary. [43] MR. SMITH: Thank you, My Lord. [44] THE COURT: Mr. Selly? [45] MR. SELLY: My Lord, I'm content with the math. Just to bring some certainty and finality to this matter, I'd ask that Your Lordship award a specific amount of disbursements, that being the amount laid out in my

friend's draft bill of costs that was attached to the materials, which I just now realize -- [46] THE COURT: Mr. Smith, any issue with that? [47] MR. SMITH: No issue at all, and I suspect my friend and I can agree to that. [48] THE COURT: All right. [49] MR. SMITH: Although I don't think either of us has that total amount of disbursements before us today. [50] THE COURT: Well, then let me clarify for the purposes of the record and for counsel. The application is granted. Double costs for two days come to $19,000. A 25 percent deduction, given the time when I find the offer should have been accepted, is $4,750, making an award of costs of $14,250. That is exclusive of taxes and disbursements, and I will make the order that the disbursements that are included in the -- was that attached to the affidavit of -- [51] MR. SMITH: Ms. Geary, yes. [52] THE COURT: Ms. Geary. [53] MR. SMITH: It was. [54] MR. SELLY: Yes. [55] THE COURT: The disbursements that are an exhibit to the affidavit of Ms. Geary that was filed on this hearing are the reasonable disbursements that the defendant can claim. [56] I take it you are consenting to that portion, Mr. Selly? [57] MR. SELLY: Yes, My Lord. [58] THE COURT: All right, and each party will bear their own costs of this application. [59] MR. SELLY: Thank you, My Lord. [60] THE COURT: Anything further, Mr. Smith? [61] MR. SMITH: Nothing, thank you, My Lord. [62] THE COURT: Mr. Selly? [63] MR. SELLY: Thank you, My Lord. "G. R. J. Gaul J."